Grilled Alito

Roe v. Wade | Abortion views move to back burner as nominee has his own day in court

When Sen. Patrick Leahy (D-Vt.) took his seat behind the Senate Judiciary Committee's red-shrouded dais on the second day of confirmation hearings for Supreme Court nominee Samuel Alito, he felt something strange beneath his feet. After giving a few firm kicks, the chagrined senator discovered that the foreign object was a press photographer.

Dozens more photographers wedged into every spare nook of room 216 in the Hart Building on Capitol Hill for the week-long confirmation hearings, training their wide-angled lenses on the mild-mannered judge from New Jersey. Mr. Alito, sitting alone at a small table under bright lights, paid little attention to the media blitz, turning his energies instead to the 18 senators examining his judicial record and philosophy.

Pundits predicted that questions surrounding Mr. Alito's position on abortion and Roe v. Wade would dominate the hearings, and perhaps snare the nominee, pointing specifically to a 1985 memo in which Mr. Alito, then an attorney for the Justice Department, wrote that "the Constitution does not protect a right to an abortion." But as committee members delivered their opening statements, most Democratic senators devoted only small portions of their remarks to what they called "a woman's right to choose," focusing instead on issues such as discrimination and the scope of executive power.

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That left it to Republican senators to underscore the influence Mr. Alito could have on abortion-related cases if he is confirmed to replace moderate Justice Sandra Day O'Connor, often a swing vote in close cases. Sen. Tom Coburn (R-Okla.) said that the central issue in the hearings and "the real debate here is about Roe," adding that "the question that arises as we approach a Supreme Court nominee is: Where are we in America when we decide that it's legal to kill our unborn children?"

Democrats, ironically, didn't take the bait, sensing Mr. Alito is less vulnerable in the court of public opinion on abortion than he may be on other issues. They grilled Mr. Alito on decisions he'd handed down in federal courts in discrimination cases, and they suggested the judge favors corporations and government entities over "the little guy."

Mr. Alito defended his record, pointing to a slate of cases in which he had ruled in favor of individuals, including minorities, and saying: "I believe very strongly in treating everybody that comes before me very equally. I take that oath very seriously and I've tried my very best to abide by that during my 15 years on the bench. I don't think a judge should keep a scorecard . . . but I think if anybody looks at the cases I've voted on . . . they will see that there are decisions on both sides."

The same senators also suggested that Mr. Alito would vest too much power in the executive branch and raised concerns over recent reports that President Bush authorized domestic spying. (Mr. Bush has acknowledged using the War Powers Act to authorize wiretaps of Americans with ties to suspected terrorists without warrants as part of national security surveillance since 9/11.)

Sen. Edward Kennedy (D-Mass.) asked if Mr. Alito would stand up to a president who "ignores the Constitution," and said he believed the judge is "overly deferential to executive power." Other Democrats, including Sen. Leahy, joined Sen. Kennedy in pressing Mr. Alito on the issue "in a time when this administration seems intent on accumulating unchecked power."

Mr. Alito responded, "Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances. . . . No one is above the law in this country, and that includes the president and the Supreme Court."

As senators showered Mr. Alito with hundreds of questions, the judge displayed an encyclopedic knowledge of case law, at one point rattling off details about obscure Supreme Court decisions dating back to World War II.

The most grueling line of questioning also came from Sen. Kennedy, who aggressively inquired about Mr. Alito's membership in Concerned Alumni of Princeton (CAP), a group that published a magazine criticizing the university's admittance of women and minorities. Mr. Alito acknowledged that he listed membership in CAP on a 1985 job application, but said that he had never been an active member of the group, that he recalled nothing about his involvement, and that he "deplores" the group's "racist and elitist" ideas.

Sen. Kennedy persisted in identifying Mr. Alito with CAP's distasteful ideals and asked that the committee subpoena any CAP-related records in the Library of Congress. Mr. Alito remained composed and firm during the exchange impugning his character, but the tense interaction took a toll on his wife, who dissolved into tears when Sen. Lindsey Graham (R-S.C.) later defended her husband's integrity.

Attacking Mr. Alito's integrity based on his membership in CAP loomed large in a Democratic opposition strategy that seemed less able to stir significant controversy-as it has during past confirmation procedures-over the judge's views on abortion. When the committee's discussion did turn to abortion, Mr. Alito testified that he would keep "an open mind" about the issue, and that his 1985 memo "was a true expression of my views at the time."

But the judge also refused to affirm that Roe v. Wade was "settled law," or that it was what Democrats called "super-precedent" or "super-duper-precedent."

"That reminds me of the size of laundry detergent in the supermarket," Mr. Alito said. He emphasized that the job of a Supreme Court justice is "to interpret the Constitution," saying that "the principles don't change," and that a judge should not "add to, subtract from, or distort the Constitution."

Democrats weren't the only ones who made less noise than expected over abortion during the hearings. Pro-life and pro-abortion demonstrators who held press conferences and carried signs in front of the Supreme Court on the first day of the committee's hearings had lost steam by mid-week. Three days into Mr. Alito's confirmation process, the only people left on the high court's steep staircase were two police officers providing routine security.